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TMI Blog2021 (2) TMI 654X X X X Extracts X X X X X X X X Extracts X X X X ..... (SS)A Nos.30 to 36/Ind/2016 - - - Dated:- 16-2-2021 - Shri Kul Bharat, Judicial Member And Shri Manish Borad, Accountant Member For the Appellant : Shri Girish Agrawal Miss Nisha Lahoti, ARs For the Revenue : Shri S.S. Mantri, CIT- DR ORDER PER KUL BHARAT, J.M: These appeals by the assessee are directed against the orders of ld. Commissioner of Income Tax (Appeal)in short Ld. CIT(A)-II, Bhopal all dated 29.01.2016 pertaining to Assessment Years 2002-03,2001-02,2003-04 to 2007- 08. Earlier these appeals were decided by this bench vide order 30.04.2019. However, later on the assessee preferred MA Nos. 67 to 73/Ind/2019 for recalling the order on additional grounds raised by the assessee and also computation of agricultural income on lease hold land which was not decided. Therefore, the bench, vide order 26.11.2020, recalled its earlier order to the extent of deciding aforementioned issues. Thereafter, the appeals were heard on the aforementioned issues. 2. During the course of appellate proceedings before this Tribunal the assessee also raised following additional ground of the present appeals: On the facts and in the circumstances of the case a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered by the Ld. CIT(A), the matter was restored to him for deciding the issue on merit. To give effect to the order of the Tribunal, the ID. CIT(A) issued notice on 1.08.2008 during which a legal issue was also raised before him, but the Ld. CIT(A) did not entertain the same. Now the assessee has pleaded before us that the ld. CIT(A) was not justified in entertaining the legal issue raised before him and also contended that in view of various decisions cited by him as discussed above, the proceedings initiated u/s 154 after the issue of notice u/s 143(2) was not sustainable in law. We found substance in the contention of the Ld. AR the ground of legality of proceedings u/s 154 after issue of notice u/s 143(2) is a purely legal issue, which deserves to be accepted in view of the decision of Hon'ble Supreme court in the case of National Thermal Power Corporation (supra). We also found that all the facts with regard to issue of notice u/s 143(2) and rectification of order passed u/s 154 thereafter, is already on record. As all the facts with regard to the legal issue are already on record, there is no merit in the action of the ld. CIT(A) for declining to entertain the legal iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich took over the running business of the partnership firm. In view of this material, the Tribunal could have easily looked into the relevant provisions of the Gujarat Sales-tax Act and the Gujarat Sales-tax Rules if that was found necessary and decided the appeals. Thus, there was no justification for setting aside the orders passed by the CIT(A) and sending the matters back to him for a fresh decision. The Tribunal, therefore, can be said to have erred in holding that it was unable to decide the point in controversy finally in the absence of relevant material. In order to save time and avoid multiplicity of proceedings, we are of the opinion that instead of directing the Tribunal to state the case and refer to this Court the questions raised by the assessee, the Tribunal be directed to consider the dissolution deed itself and dispose of the matter finally. It would be open to the parties to produce whatever material they deem fit and necessary for the purpose of deciding the point in issue. This application is disposed of accordingly. No order as to costs. A similar issue came before the Madras High Court in Remgosri Construction (P) Ltd. vs. Income Tax Officer (209) 308 ITR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has decided this issue as under: 15. Coming to the question Nos. 3 and 4, whether the issue could be raised by the assessee before the Tribunal for the first time and having dismissed the cross-objection, the Tribunal could proceed to give a finding on the same, the learned counsel for the assessee has invited our attention to the decision of the CIT(A) Ex./C in IT Appeal No. 112 of 2003 in which reference has been made to the decision of the Hon'ble Madras High Court in CIT v. VR. S.R.M. Firm (supra), but he has erroneously stated that it was held in the said decision that the said dividend is taxable in India under Sections 8 and 9 of the IT Act, 1961, though the decision holds to the contrary. Learned counsel, therefore, contends that the fact that the said decision was cited bears testimony to the fact that contention was raised with regard to the non-taxability of the dividend earned in Malaysia in India under the agreement in question. Learned counsel has further submitted that in the appeals filed by the respondents, they have clearly raised the questions that the Tribunal was not justified in dismissing the cross-objection filed by the assessee on the ground of lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee on merits and recorded a categorical finding on the merits of the case to the effect that dividend income received from Pan Malaysia cannot be taxed in India, did it not result in allowing the cross-objection so submitted by the appellant/assessee ? (iii) Having held in favour of the assessee that the dividend income in question is not taxable in the hands of assessee, was it not necessary for the Tribunal to have further recorded the finding that issue relating to grant of credit sought by the assessee has become redundant and hence need not be gone into ? (iv). Having decided the issue in favour of the assessee, whether the Tribunal was justified in then allowing the appeal filed by the Department or the Tribunal should have then either dismissed the appeal filed by the Revenue or should have held it to have rendered infructuous in the light of a categorical finding recorded in favour of the assessee ? 17. Though in view of our answer to the questions formulated in the Revenue appeals, it is not necessary to decide the questions formulated in the appeals filed by the assessees, we may observe that since we have held that the dividend income is not ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... findings of the Assessing Officer was also confirmed by the CIT(A)-II, Bhopal. During the set aside proceedings also the assessee has failed to give any documentary evidence in support of cash credit available with him. Therefore, The assessee has failed to prove identity, creditworthiness and genuineness of the advances received. Therefore, an amount of ₹ 20,OO,OOO/- is hereby added to the total income of the assessee under section 68 of the Act. I am also satisfied that the assessee has concealed his income and also furnished inaccurate particulars of income within the meaning of the section 271 (1) (c) of the Income Tax Act 1961. Hence, penalty proceedings u/s. 271(1)(c) are being initiated separately. 16. From the above observation of the A.O it is evident that the A.O has not made any specific reference to the incriminating material found during the search. Under these facts non reference to the incriminating material by the A.O is contrary to the settled position of law. We hold accordingly. This ground of assessee s appeal is allowed. 10. Having gone through the material available on record and rival submissions as above, we find that no documents relating to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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